NJSBA Family Law Section

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  • 1.  Impact of Divorce on 401K Beneficiary Designation

    Posted 07-27-2020 10:22 AM
    Does a divorce vitiate a 401K beneficiary designation in favor of ex-spouse? Divorce agreement does not mention the 401k. 401K owner/spouse died 20 years after divorce and never changed beneficiary designation on his 401K. It still lists his ex-wife as beneficiary. Is there any reason why ex-wife wouldn't get 401k?

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    Charles Vuotto Esq.
    Starr, Gern, Davison & Rubin, P.C.
    (973)403-9200 EXT 246
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  • 2.  RE: Impact of Divorce on 401K Beneficiary Designation

    Posted 07-27-2020 10:30 AM
    An MSA can vitiate a 401(k) beneficiary designation, however in the absence of that, decedent's estate is going to have a hard time having ex-wife removed as beneficiary because it is statutory - the Uniform Transfer on Death Security Registration Act (NJSA 3B:30-5, et al).  I just briefed this for a disputed probate matter.  If there's neither actual compliance with the requirements to change the beneficiary, nor any evidence of substantial compliance, the statutory assumption is that decedent meant to leave ex-wife as beneficiary.

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    Alix Claps
    Heymann & Fletcher
    (973)895-4400
    [email protected]
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    Original Message


  • 3.  RE: Impact of Divorce on 401K Beneficiary Designation

    Posted 07-27-2020 10:31 AM
    I always thought 401(k) beneficiary designations were covered under N.J.S.A. 3B:3-14, which revokes probate and non-probate transfers by divorce or annulment.

    Justin M. Smigelsky, Esq.


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    55 Challenger Road, 6th Floor

    Ridgefield Park, New Jersey 07660

    Tel:  973.639.9100

    Fax: 973.639.9393

    seegerweiss.com


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  • 4.  RE: Impact of Divorce on 401K Beneficiary Designation

    Posted 07-27-2020 10:34 AM
    It does. But, the case law holds that the contract with the Life Insurance, IRA 401K under Erica requires the company to honor the beneficiary but then via OSC either in divorce docket or in probate part can create a constructive trust pursuant to the statute and disgorge the funds from the ex spouse .

    Alice M. Plastoris, Esq.
    (973) 538-7070

    Sent from my iPad



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  • 5.  RE: Impact of Divorce on 401K Beneficiary Designation

    Posted 07-27-2020 10:39 AM

    Good Morning Mr. Smigelsky –

     

    Are you related to the Smigelskys of Linden?  My dad, Joseph Smigelsky, or my Uncle Mike and Aunt Theresa?

     

    Sincerely,

    Cheryl

     

    Cheryl A. Smigelsky

    Assistant to Edward S. Cooper, Esq.

     




    Original Message


  • 6.  RE: Impact of Divorce on 401K Beneficiary Designation

    Posted 07-27-2020 10:38 AM

    Chuck- See N.J.S.A. 3B:3-14 which generally revokes all beneficiary designations upon divorce and Hadfield v. Prudential which specifically applies it to life insurance policies.  However, because 401ks are governed by Federal law, there could be a federal preemption issue, so you should research whether the result would be the same under federal law.  

     

    _____________________________________

    Brian G. Paul, Esq.

    Certified Matrimonial Law Attorney

    Szaferman, Lakind, Blumstein & Blader, P.C.

    101 Grovers Mill Road

    Lawrenceville, New Jersey  08648

    Phone:  609-275-0400

    Direct Fax:  609-779-6065

    [email protected]

     

     Description: Description: L:\Photos\True Counsel Logo for email sigs.jpg

     




    Original Message


  • 7.  RE: Impact of Divorce on 401K Beneficiary Designation

    Posted 07-27-2020 11:37 AM

    401k is governed by ERISA.  I am not 100% certain but my understanding is the plan has no option but to pay to ex-spouse.  However, the estate may challenge. Estate could interplead the plan and ask that distribution be delayed until lawsuit resolved.

    ERISA plans are governed by federal law. Thus we have had cases such as Files v. Exxon, Samaroo and Ross.

     

    Jamie K. Von Ellen, Esq.

    Gomperts Penza

    McDermott & Von Ellen

    Park Place Legal Center                                                  

    959 South Springfield Avenue                                       

    Springfield, New Jersey 07081                                      

    (973) 258-1440 Phone                                                  

    (973) 258-1556 Fax   

     

    Offices in Springfield and Sparta

     

    www.gpmvlaw.com

     

    JKV

     

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  • 8.  RE: Impact of Divorce on 401K Beneficiary Designation

    Posted 07-27-2020 12:31 PM

    if the 401K and beneficiary designation existed during the marriage and at the time of the divorce, it does not matter whether the divorce judgment/agreement mentions the 401K (would not be the first time someone hid or forgot an asset), the right to receive under the non-probate beneficiary designation is void per the statute as a matter of law.  If the 401K did not exist at the time of the divorce, and ex-spouse named the other ex-spouse as the beneficiary then the statute has no effect.

     

    Alice M. Plastoris, Esq.

    Law Office of Alice M. Plastoris, Esq.

    82 Speedwell Avenue, 2nd Floor

    Morristown, NJ 07960

    Telephone No. (973) 538-7070

    Fax No. (973) 538-7088

    Email: [email protected]

     

    Admitted to U.S. Supreme Court

    AAML Trained Arbitrator

    R. 1:40 Mediator in Civil, Chancery, Foreclosure and Matrimonial Matters

    NJAJ Board of Governors

    NJAJ Matrimonial Committee Co-Chair

     

     

     

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  • 9.  RE: Impact of Divorce on 401K Beneficiary Designation

    Posted 07-27-2020 01:15 PM
    See: 

    Egelhoff v. Egelhoff, 532 US 141 - Supreme Court 2001

    and cases citing it since.


    Marlene Browne Chamberlin

    www.marlenebrowne.com




    Original Message